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Identity Crisis: Class Certification, Aggregate Proof, and How Rule 23 May Be Self-Defeating the Policy for Which It Was Established

26 Pages Posted: 28 Mar 2011 Last revised: 21 Nov 2012

Jeremy Britton Whitbeck

affiliation not provided to SSRN

Date Written: March 23, 2011

Abstract

Class actions suits developed in the United States as a form of “group litigation,” an alternative to the impracticability or inequities of separate, individual actions of similarly situated class of plaintiffs and, eventually, defendants as well. Congressional passage of the Class Action Fairness Act of 2005 provided the federal courts with expounded diversity jurisdiction for the purpose of “assur[ing] fairer outcomes for class members and defendants.” However, recent circuit splits regarding class certification under Rule 23 of the Federal Rules of Civil Procedure and the use of aggregate proof in certifying classes, may whereby, in an ironic twist of legal fate, result in the very same “inconsistent or varying” standards that the rule was designed to prevent.

Keywords: Class Action, Aggregate Proof, CAFA, Class Action Fairness Act, Dukes v. Wal-Mart

Suggested Citation

Whitbeck, Jeremy Britton, Identity Crisis: Class Certification, Aggregate Proof, and How Rule 23 May Be Self-Defeating the Policy for Which It Was Established (March 23, 2011). Pace Law Review, Vol. 32, No. 2, 2012. Available at SSRN: https://ssrn.com/abstract=1793344 or http://dx.doi.org/10.2139/ssrn.1793344

Jeremy Britton Whitbeck (Contact Author)

affiliation not provided to SSRN ( email )

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